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Husband has not been paying maintenance since March 2020

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The court has ordered under section 125 crpc to pay maintenance @18000 per month. But my husband has not been paying the maintenance and he wants to file a divorce case against me. I have contacted my advocate for taking legal action against my husband for payment of maintenance but he said that it is barred by limitation. What remedy is available for me?  I am living in destitution and paying the fee of my children out of the savings. 

Question from: Haryana

Once the court has passed a maintenance order under section 125 of the code of criminal procedure you should take steps of execution. You should file an execution petition under section 128 of the code of criminal procedure. 

There is no limitation period in execution petition under section 128 crpc

The court has power to execute its order by issuing notice to the husband. The opinion of your advocate is false and it is against the mandate of section 128 of the code of criminal procedure. Section 128 CrPC does not postulate any limitation period for filing an execution petition.

Thus you have the right to file an execution petition before the court however there is a long delay. Subsection 3 of section 125 mandates a one year limitation period for payment of maintenance which is due on husband. 

But this provision is not applicable on the execution petition filed under section 128 CrPC. I think your advocate has wrongly interpreted the provision of section 125 and advised you that the execution petition is barred by limitation period. 

In Mohammad Usman Alias Bhai Lal vs State Of U.P. and Others; the Allahabad High Court has held that there is no period of limitation towards execution petition under section 128 CRPC. 

Even otherwise, a plain reading of the first proviso to Section 125(3) would show that the limitation of making an application within a period of one year from the date on which it becomes due would only be applicable in case of issuance of a warrant for recovery of any amount due under the section, and it does not contain any restriction on a claim to be made for enforcing the order of maintenance for which the provision is made under Section 128.

Mohammad Usman Alias Bhai Lal vs State Of U.P. and Other

Therefore, you should file an execution petition before the Honorable Court as soon as possible. You should not cause any unreasonable delay in filing an execution petition. The case is fit for execution because the Court has passed a maintenance order in your favour and your husband has not been obeying that order. There is no bar on the admission of an execution petition on the basis of delay.

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A maintenance order without hearing the husband is void

The court cannot pass a maintenance order under Section 125 of the Code of Criminal Procedure (crpc) without hearing or giving the opportunity of hearing to the husband. If the court did so, it has breached the principle of natural justice. The husband should file an application under section 126 crpc for setting aside that order. There is a period of limitation for filing of such an application u/s 126 crpc

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